Through Smartmessages (the "Service"), Synchromedia Limited (the "Service Provider") offers online utilities and resources that enable Service users to collect electronic mail addresses and other information ("Data") from individuals and corporations ("Subscribers"). The Service enables users to process Data for the purpose of composing, sending, and managing electronic mail transmissions and marketing communications ("Campaigns").
By ticking the box on the Service registration page next to "I agree with the terms and conditions these terms and conditions", you (the "User") agree the following terms and conditions.
The Service is provided subject to this Agreement, and any guidelines, rules, or operating policies that the Service Provider may establish from time to time (the "Agreement"). By posting notifications on the Service log-in page, or by otherwise providing notice to Users, the Service Provider may modify the terms of the Agreement, and may discontinue or revise any aspect of the Service at its sole discretion. All such changes shall become effective upon the posting of such notifications. By logging-on to the Service, the User accepts the Agreement and the Service that is current at the time of logging-on.
The Service is only available to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Service is not available to individuals under the age of 18 years.
Users must complete the registration form for the Service in order to use the Service. Users agree to provide true, accurate, current, and complete information about themselves and their business as requested on the registration form. As part of the registration process, users will nominate an e-mail address and password for their Service account. Users are responsible for maintaining the validity of their email address, the security of their passwords, the integrity of their account, and all Service uses performed in their name. The User agrees that the Service may send them diagnostic, status or informational email messages relating to their use of the service. The Service Provider reserves the right to refuse or cancel the registration of accounts which, at its sole discretion, are deemed inappropriate.
Data is hosted and processed on servers in the United Kingdom and within the jurisdiction of the Information Commissioner's Office (the "Data Regulator"). Users agree to manage Data and use the Service in accordance with the Data Protection Act 1998, and the European Directive on Privacy and Electronic Communications Regulations 2003 (collectively, the "Data Regulations"). The Information Commissioner has also signed a memorandum of understanding with the United States Federal Trade Commission, the Australian Competition and Consumer Commission, the Australian Communications Authority, and the Office of Fair Trading in the UK. These parties have agreed to cooperate and exchange information about unsolicited electronic mail ("Spam") originating from their jurisdiction, or initiated by Users in their jurisdiction.
The Data Regulations, as well as guidance about their application and good practice can be found on the web site of the Information Commissioner's Office.
The Service Provider, at its sole discretion, retains the right to terminate Service accounts that are deemed or alleged to have violated the Data Regulations.
Campaigns are transmitted to Subscribers through servers in the United Kingdom, where marketing Campaigns are regulated by the Advertising Standards Authority, and in the USA under the CAN-SPAM act of 2003. Users agree to use the Service and to manage content in all its forms, including text, images, audio, and video (the "Content") in accordance with the standards recommended by the British Code of Advertising, Sales Promotion and Direct Marketing (the "Content Code").
The Content Code for non-broadcast advertising, as well as guidance about its application and good practice can be found on the web site of the Advertising Standards Agency.
Any attempt to use measures intended to defeat or bypass mail filters, such as content obfuscation, or anything else deemed to be "spammy" in content or behaviour and/or likely to result in blacklisting or spam reports by recipients is not permitted.
The User shall not in any way misrepresent themselves, nor attempt to pass themselves off as another entity. This includes affiliate marketing and any activities that may be seen as "Phishing". If the User sends on behalf of a third party, that third party must be fully aware that they are doing so, to the extent that if we contact them, they would know what you are doing.
The User shall present a consistent representation of their identity - a single Service account may not be used to represent different entities, and links within messages must resolve consistently - for example messages containing URLs that link to differently-branded pages at different times will be considered spam. If you need to present multiple identities, this can be achived legitimately by opening multiple accounts.
Certain subject areas and marketing approaches are considered especially suspicious, as they are extremely likely to be classified as spam or considered fraudulent or illegal, and are thus not permitted:
Any redirects occurring for a Service acccount which has been blocked due to violations of this Agreement will be redirected to a service violation page.
The Service Provider, at its sole discretion, retains the right to terminate Service accounts that are deemed or alleged to have violated the Content Code.
The Service Provider may inspect mailing lists and mailing responses for quality and compliance purposes. Poor engagement performance is a primary indicator of spam and can adversely affect the entirety of the Services, so very low delivery rates (high bounce rates), high deferral rates, low open and click tracking responses, high incidence of spam reporting, or any complaints made made to the Service Provider will be treated in the same way as spam content.
Users may manage up to the number of Subscribers on their Service account, unless this maximum is increased by written agreement with an authorized representative of the Service Provider. Users may send an unlimited number of emails providing all such activity is in compliance with this Agreement, is for lawful purposes, and respects the rights of each Subscriber.
The Service Provider will not disclose the personal information of Users, or that of their Subscribers to third parties, except as may be required by law. The Service Provider will only use the Subscriber lists and Data held on Users accounts for the purpose of providing the Service. Neither the Service Provider, nor its affiliates will send unsolicited electronic mail to Subscriber lists held on User Service accounts.
All messages must contain a link to the unsubscribe mechanism provided by the Service, and not to other unrelated unsubscribe locations (for example an unsubscribe service of a different service provider). Exemptions may be made if you are able to demonstrate to our satisfaction that you are are handling unsubscribe requests on your own system and updating our system to reflect this state via our API or form processing handlers.
The Service Provider may use information provided by Users and gathered in the course of their using the Service to facilitate and to enhance their use of the Service and to communicate with them (for example to inform them of system changes, maintenance downtime, billing matters etc).
The Service Provider makes no guarantee that electronic mail will be rendered properly on all recipients' terminal devices. The Service Provider makes every attempt to make sure that electronic mail sent through the Service is compatible with prevailing technical standards, but cannot guarantee that messages will appear and operate consistently across all Subscriber platforms. Some platforms may incorporate incompatible proprietary standards, may not have been upgraded to support the prevailing standards, or may use filters to block the transmission of the actual mail Content or types of mail Content.
Cookies are small pieces of text stored on your computer by your web browser that allow web sites you visit to keep track of you, for example whether you have logged in, preferences you may have set etc. Their use in the UK is covered by The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 which applies from May 26th 2012.
Importantly, we do not make use of any third-party cookies, so your activities are not shared with any other networks (e.g. as used by advertisers). We recommend that you set your web browser to at least require your explicit consent before accepting third party cookies.
For further information about cookies and UK law, please refer to the UK Information Commissioner's Office. If you have any queries about what cookies are, how they are used, and how you can control them, please visit www.aboutcookies.org.
Users may terminate this Agreement at any time by sending an e-mail message to email@example.com or by sending written notice to Synchromedia Limited, Sussex Innovation Centre, Science Park Square, Falmer, East Sussex BN1 9SB, UK. No refunds will be issued if you terminate this agreement.
The Service Provider may terminate this Agreement or the Service at any time with or without cause, and with or without notice. The Service Provider shall have no liability to you or any third party because of such termination. If the Service Provider terminates this Agreement because of a violation of the Agreement, no refund will be issued.
In the event of Service account termination, the Service Provider may delete the Service account Data 30 days after the date of termination. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
Users that do not log into their account for more than 120 days, or fail to make agreed Service payments, may find their Service account has been de-activated and is inaccessible. USERS OF DE-ACTIVATED SERVICE ACCOUNTS HAVE 30 DAYS TO REACTIVATE THEIR ACCOUNT, OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER DATA, MAY BE PERMANENTLY REMOVED FROM THE SERVICE DATABASE. Users may request that de-activated accounts are re-activated by sending an email message to firstname.lastname@example.org.
This is an Agreement for Service, and does not grant a license to any software. Users shall not, directly or indirectly: reverse engineer, de-compile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Service or any software, documentation, or data related to the Service (the "Software"); remove any proprietary notices or labels from the Service or any Software, modify, translate, or create derivative works based on the Service or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Software. The Service shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, unless by written agreement with an authorized Service representative. If you are using the Service in any country in the European Community, the prohibition against modifying, translating, reverse engineering, de-compiling, disassembling or creating derivative works based on the Service or the Software does not affect your rights under any legislation implementing the EC Council Directive on the Legal Protection of Computer Programs.
Users acknowledge and agree that the Service, Service names and logos, and all related product and service names, design marks and slogans, are the property of the Service Provider, or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of the Service Provider. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain with the Service Provider or its third party suppliers, as the case may be.
The Service Provider retains the right to apply its Marks and corresponding web links to the Users Service resources, including but not limited to emails and web forms.
Users represent, covenant, and warrant that they will use the Service only in compliance with the Agreement and for lawful purposes. Users agree they will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited electronic mail to any third party. Users warrant that their own Subscriber lists have been obtained lawfully on a double-opt-in basis. If mailing lists have been obtained from a third party, or claim to have third party consent, full details of the origin of that consent must be made available to the Service Provider and Subscribers. Users hereby agree to indemnify and hold the Service Provider harmless against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to their use of the Service. Although the Service Provider has no obligation to monitor the Content that Users transmit via the Service, The Service Provider may do so, and may remove any such content. The Service Provider, at its sole discretion, retains the right to terminate Service accounts that are deemed or alleged to have violated the foregoing.
Although the Service may be used to communicate in a wide variety of languages, and some elements of the Service may be provided in other languages, Service support is available in English only.
USE OF THE SERVICE AND ANY RELIANCE BY YOU UPON THE SERVICE, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. THE SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED "AS IS" AND THE SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Users sole and exclusive remedy for any failure or nonperformance of the Service shall be for the Service Provider to use commercially reasonable efforts to adjust or repair the Service.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL THE SERVICE PROVIDER OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "THE SERVICE PROVIDERS") BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF THE SERVICE PROVIDERS SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, THE SERVICE PROVIDERS ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF THE SERVICE PROVIDERS TO YOU WILL BE LIMITED TO THE AMOUNT PAID FOR THE SERVICE.
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
The Service Provider and the User agrees that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
No agency, partnership, joint venture, or employment is created as a result of the Agreement, and Users do not have any authority of any kind to bind the Service Provider in any respect whatsoever.
In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
This Agreement and any non-contractual obligations or disputes arising out of or in connection with it are governed by English law, and the English law rules governing conflict of laws shall apply.